[Federal Register Volume 64, Number 179 (Thursday, September 16, 1999)]
[Rules and Regulations]
[Pages 50254-50256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24044]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6437-2]


Final Determination To Extend Deadline for Promulgation of Action 
on Section 126 Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

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SUMMARY: The EPA is extending by six months the deadline for taking 
final action on the petition that the District of Columbia has 
submitted to require EPA to make findings that sources upwind of the 
District of Columbia contribute significantly to its ozone 
nonattainment problems. Under the Clean Air Act (CAA or Act), EPA is 
authorized to grant this time extension if EPA determines that the 
extension is necessary, among other things, to meet the purposes of the 
Act's rulemaking requirements. By this document, EPA is making that 
determination.

EFFECTIVE DATE: This action is effective as of September 7, 1999.

FOR FURTHER INFORMATION CONTACT: Howard J. Hoffman, Office of General 
Counsel, Mail Code 2344, 401 M Street SW, Washington, DC 20460, (202) 
564-5582, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Today's action is procedural, and is set in the context of a series 
of actions EPA is taking to address the problem of the transport of 
tropospheric ozone and its precursors--especially oxides of nitrogen 
(NOx)--across the eastern region of the United States.
    By a notice dated May 25, 1999, 64 FR 28250, EPA promulgated a 
final rulemaking concerning petitions submitted by eight northeastern 
States under section 126(b) of the CAA, which authorizes States or 
political subdivisions to petition EPA for a finding that major 
stationary sources in upwind States emit in violation of the 
prohibition of section 110(a)(2)(D), by contributing significantly to 
nonattainment problems in downwind States. The eight States submitting 
the petitions were Connecticut, Maine, Massachusetts, New Hampshire, 
New York, Pennsylvania, Rhode Island, and Vermont.
    On July 9, 1999, EPA received a petition under section 126 from the 
District of Columbia. This petition seeks findings, similar to those 
for which EPA granted affirmative technical determinations, for 
specified sources in specified upwind States.
    Under section 126(b), for each petition, EPA must make the 
requested finding, or deny the petition, within 60 days of receipt of 
the petition. This period would expire for the District of Columbia on 
September 7, 1999.
    Under section 126(c), with respect to any existing sources for 
which EPA makes the requested finding, those sources must cease 
operations within three months of the finding, except that those 
sources may continue to operate if they comply with emissions 
limitations and compliance schedules that EPA may provide to bring 
about compliance with the applicable requirements.
    Section 126(b) provides that EPA must allow a public hearing for 
submitted petitions. In addition, EPA's action under section 126 is 
subject to the procedural requirements of CAA section 307(d). See 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3).
    In addition, section 307(d)(10) provides for a time extension, 
under certain circumstances, for rulemaking

[[Page 50255]]

subject to section 307(d). Specifically, section 307(d)(10) provides:

    Each statutory deadline for promulgation of rules to which this 
subsection applies which requires promulgation less than six months 
after date of proposal may be extended to not more than six months 
after date of proposal by the Administrator upon a determination 
that such extension is necessary to afford the public, and the 
agency, adequate opportunity to carry out the purposes of this 
subsection.

    Section 307(d)(10) applies, by its terms, to section 126 
rulemakings because the 60-day time limit under section 126(b) 
necessarily limits the period after proposal to less than six months. 
In previous rulemaking concerning the earlier section 126 petitions, 
EPA granted itself several time extensions for acting on those 
petitions. See, e.g., 62 FR 54769 (Oct. 22, 1997).
    On June 22, 1999 (64 FR 33200), EPA made a final determination to 
extend the deadline for taking final action on petitions that were 
received from three additional States (Delaware, Maryland and New 
Jersey). These three petitions were received in the Spring of 1999, and 
EPA's action extended the time frame for acting on these petions for 
six months.
    In accordance with section 307(d)(10), EPA is today determining 
that the 60-day period afforded by section 126(b) is not adequate to 
allow the public and the agency adequate opportunity to carry out the 
purposes of the section 307(d) procedures for developing an adequate 
proposal on whether the sources identified in the section 126 petition 
contribute significantly to nonattainment problems downwind, and, 
further, to allow public input into the promulgation of any controls to 
mitigate or eliminate those contributions. The determination of whether 
upwind emissions contribute significantly to downwind nonattainment 
areas is highly complex, although much technical work has already been 
accomplished in the course of other rulemakings.
    The EPA is in the process of determining what would be an 
appropriate schedule for action on the District of Columbia section 126 
petition, in light of the complexity of the required determinations and 
the other issues. The schedule must afford EPA adequate time to prepare 
a notice that clearly elucidates the issues so as to facilitate public 
comment, as well as afford the public adequate time to comment.
    Accordingly, extending the date for action on the District of 
Columbia section 126 petition for six months is necessary to determine 
the appropriate overall schedule for action, as well as to continue to 
develop the technical analysis needed to develop a proposal.

II. Final Determination

A. Rule

    Today, EPA is determining, under CAA section 307(d)(10), that a 
six-month period is necessary to assure the development of an 
appropriate schedule for rulemaking on the District of Columbia section 
126 petition, which schedule would allow EPA adequate time to prepare a 
notice for proposal that will best facilitate public comment, as well 
as allow the public sufficient time to comment. Accordingly, EPA is 
granting a six-month extension to the time for rulemaking on this 
section 126 petition. Under this extension, the date for action on the 
section 126 petition from the District of Columbia is March 7, 2000.

B. Notice-and-Comment Under the Administrative Procedures Act (APA)

    This document is a final agency action, but may not be subject to 
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The 
EPA believes that because of the limited time provided to make a 
determination that the deadline for action on the section 126 petition 
should be extended, Congress may not have intended such a determination 
to be subject to notice-and-comment rulemaking. However, to the extent 
that this determination is subject to notice-and-comment rulemaking, 
EPA invokes the good cause exception pursuant to the APA, 5 U.S.C. 
553(b)(3)(B). Providing notice and comment would be impracticable 
because of the limited time provided for making this determination, and 
would be contrary to the public interest because it would divert agency 
resources from the critical substantive review of the section 126 
petition.

C. Effective Date Under the APA

    Today's action will be effective on September 7, 1999. Under the 
APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 
days after the date of publication in the Federal Register if the 
agency has good cause to mandate an earlier effective date. Today's 
action--a deadline extension--must take effect immediately because its 
purpose is to move back by six months the upcoming deadline for the 
District of Columbia section 126 petition. Moreover, EPA intends to use 
immediately the six-month extension period to continue to develop an 
appropriate schedule for ultimate action on this section 126 petition, 
and to continue to develop the technical analysis needed to develop the 
notice of proposed rulemaking. These reasons support an effective date 
prior to 30 days after the date of publication.

D. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

E. Unfunded Mandates

    Under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et 
seq., EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector or to 
State, local, or tribal governments in the aggregate. In addition, 
before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, EPA must have 
developed a small government agency plan. EPA has determined that these 
requirements do not apply to today's action because this rulemaking (i) 
is not a Federal mandate--rather, it simply extends the date for EPA 
action on a rulemaking; and (ii) contains no regulatory requirements 
that might significantly or uniquely affect small governments.

F. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
EPA must propose a regulatory flexibility analysis assessing the impact 
on small entities of any rule subject to the notice-and-comment 
rulemaking requirements. Because this action is exempt from such 
requirements, as described above, it is not subject to RFA.

G. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. of the APA, 5 U.S.C. 801(a)(1)(A), as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
EPA submitted, by the date of publication of this rule, a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office. This rule is not a ``major rule'' as defined 
by 5 U.S.C. 804(2), as amended.

H. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.)

[[Page 50256]]

I. Judicial Review

    Under CAA section 307(b)(1), a petition to review today's action 
may be filed in the Court of Appeals for the District of Columbia 
within 60 days of September 16, 1999.

    Dated: September 7, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-24044 Filed 9-15-99; 8:45 am]
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